I read a case out of the Ontario Superior Court of Justice in 2013, but in hindsight didn’t really give it the attention it deserved (R. v. Treliving 2013 ONSC 3368). I was, instead, focused on a ground for appeal on the issue of whether or not the police understand that persons entitled to the right to counsel have the right to communicate with a third person for purposes of accessing counsel, and I missed the issue which is the subject of this post.
Although a decision at the Provincial Court level, R. v. Primeau 2015 SKPC 104 has examined whether or not an admission of driving made by the driver in response to police investigating a motor vehicle accident could be admissible on the voir dire as grounds for arrest or demand? In reading this case, it prompted me to recall the Treliving case and so I did further inquiries into this subject area.
In Primeau, officers were dispatched to a motor vehicle accident and the complainant believed the driver of the other vehicle was intoxicated. The complainant told one of the officers that a white truck backed out of the driveway into his van, which was parked in the street. He gave a one sentence statement to the effect that “It was a female driving the truck.” The complainant pointed to the residence from where the truck had left. An officer looked and saw that the truck had returned. During testimony, there was some discrepancy as to whether the two officers entered the residence at all, whether they entered upon being invited inside, etc., or who asked who had been driving the white truck (“Who was the female driving the white truck that hit the van?”).
One officer testified that Ms. Primeau came to the door to see what was happening and “she indicated that she was the one driving the truck.” He then admitted, “We asked the residents who was driving the vehicle”. He believed both he and the other officer asked the question. Then he said “I asked a general question of the residents of the house, ‘Who was driving the vehicle?’ She voluntarily came forward and she answered she was.” There were also issues with the “preceding three hours” requirement for the breath demand as neither officer could testify accurately to the time of the accident (which, in turn, would be the time of driving), and reasonable grounds to believe for a breath demand versus reasonable suspicion for an ASD demand, but I won’t get into those separate issues in this post.
When there is a motor vehicle accident, we have a duty to investigate and complete an accident report where the requirements are met. In Saskatchewan, police have a duty to complete an accident report pursuant to section 253 of the Traffic Safety Act (s. 98 in Nova Scotia, s. 130-131 in New Brunswick, s. 232 in PEI, and so on). In situations such as these, it requires the driver or the person in charge of the vehicle to report to a police officer, and it further requires the officer receiving the “report” (information) to make a written report. So, it contemplates two mandatory reports — one by the motorist (to give the information), and one by the police officer. Therefore, the question to ponder is, “Can statements or admissions made while participating in the mandatory making of the report (statutory requirement) be used for any purposes in the criminal trial for grounds for a demand or an arrest?” Narrowly focused, due to the provincial legislation, answers to any questions asked by the police where there has been a collision are compelled answers, so can they be used to establish who was driving in criminal precedings?
In Primeau, the Judge ruled that the accused’s statement that she was the driver was inadmissible on the voir dire. Police were investigating the accident under the Traffic Safety Act. The officers did not indicate they were investigating an offence under the Criminal Code until they arrested the accused and after she had given the statement she was compelled to give under provincial legislation. There being no grounds to believe she was driving the truck, there were no grounds to arrest her or to make the breath demand.
Other courts have come to the same conclusion: in R. v. Scharf, 2013 SKQB 327, police were investigating a motor vehicle accident. The accused was sitting in the back seat of another vehicle. In response to a question from the investigating officer, the accused admitted he was driving the vehicle involved in the incident. Mr. Justice Danyluk stated at paragraph 43:
Here, it is clear from the evidence that while [the officer] said he was dispatched to a motor vehicle accident and was initially investigating same under provincial law, his evidence also revealed that when he received the 911 call dispatch, a “possible impaired driver” was involved. So the officer knew, or ought to have known, that he was simultaneously pursuing an accident investigation under provincial law and a criminal investigation under the Criminal Code.
In R. v. White,  2 SCR 417, Mr. Justice Iacobucci said at paragraph 80:
…as a practical matter, it will be very important for the police officer who takes an accident report while simultaneously investigating a crime to delineate clearly for the declarant the start and end points of the accident report. For example, it may be useful for police to tell the driver that they will postpone the taking of an accident report until after they have questioned, or attempted to question, the driver. Alternatively… police may wish to tell the driver that they intend to secure the details of the accident report from sources other than the driver, thus terminating the statutory duty to report.
Other decisions, such as R. v. Soules, 2011 ONCA 429, R. v. Powers, 2006 BCCA 454, 213 C.C.C. (3d) 351, R. v. Germain 2012 ONSC 3928, and R. v. By, 2015 SKQB 86, have held that statutorily compelled statements are inadmissible in the trial of an accused person, even for the limited purpose of establishing grounds to make a breath demand. Evidence, however, by the officer that he detected the odour of alcohol on the driver’s breath may be admissible for the purpose of establishing the grounds for having made a s. 254(2) demand (e.g. Germain).
What does this all mean in this context? Follow the directions of Mr. Justice Iacobucci in White, be aware of your (officer) own “observations”, and look to other sources of information (witnesses, etc.) to establish grounds of who was driving because it would seem alot of courts have decided that an admission of driving in response to us investigating a motor vehicle accident are compelled statements and inadmissible even as grounds for arrest or demand.
As an afterthought, do not get this specific issue confused with questioning a driver in the Orbanski/Elias context (see post dated June 3, 2013) where the evidence is admissible for the limited purpose of establishing reasonable grounds for a demand. It differs because the questioning by police in those cases does not involve compelled answers. In each of them, the motorist can refuse to answer if he or she chooses; they are not forcefully enlisted in aid of their own prosecution. For example, in the case of a breath demand made by a police officer, pursuant to s. 254(5) of the Criminal Code the motorist is legally obligated to comply with the demand; nevertheless, s. 7 of the Charter continues to furnish him or her with the right to choose whether or not to speak with the police – a choice statutory compulsion clearly eradicates.